Unequal Treatment of United States Citizens: Eroding the Constitutional Safeguards

Transcription

1 Golden Gate University Law Review Volume 33 Issue 2 Law & Social Change Article 5 January 2003 Unequal Treatment of United States Citizens: Eroding the Constitutional Safeguards Irma Alicia Cabrera Ramirez Follow this and additional works at: Part of the Civil Rights and Discrimination Commons, and the International Law Commons Recommended Citation Irma Alicia Cabrera Ramirez, Unequal Treatment of United States Citizens: Eroding the Constitutional Safeguards, 33 Golden Gate U. L. Rev. (2003). This Comment is brought to you for free and open access by the Academic Journals at GGU Law Digital Commons. It has been accepted for inclusion in Golden Gate University Law Review by an authorized administrator of GGU Law Digital Commons. For more information, please contact jfischer@ggu.edu.

2 Ramirez: Unequal Treatment of U.S. Citizens COMMENT UNEQUAL TREATMENT OF UNITED STATES CITIZENS: ERODING THE CONSTITUTIONAL SAFEGUARDS INTRODUCTION On September 11, 2001, at 8:45 a.m. America witnessed a hijacked airplane flying into the North Tower of the World Trade Center in New York. 1 While the building caught on fire and cries echoed into the streets, another plane crashed into the South Tower of the World Trade Center.2 Forty minutes later, a third plane crashed into the Pentagon. 3 Five minutes after the South Tower collapsed, a fourth plane crashed into rural Pennsylvania. 4 This horrific day ended the lives of thousands of people. 5 President, George W. Bush, addressing the nation said, "terrorist attacks can shake the foundations of our biggest buildings, but they cannot touch the foundation of America."6 The President's address referred to the democracy and freedoms Americans enjoy. 7 Yet many Americans disagree with the President's address. The government's action post September 11th may have altered the democracy and freedoms 1 CNN.com.lU. S. Chronology of terror, available at (Sept. 12, 2002). 2 Id. ald. 4 Id. 5 White House Official Site, Statement by the President In His Address to the Nation, available at 16.html(Sept ). 6 Id. 7 Id. 207 Published by GGU Law Digital Commons,

3 Golden Gate University Law Review, Vol. 33, Iss. 2 [2003], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 33 guaranteed to citizens by the United States Constitution (hereinafter, "Constitution"). The constitutional safeguards, which lay the foundation for the democracy and freedoms Americans are guaranteed,8 may be eroding. Subsequent actions taken by the United States government after the September 11th attacks, aimed at protecting the United States, raise constitutional issues. 9 Citizens are detained in military custody without being charged with crimes, incommunicado, and without access to counsel. According to Golden Gate University School of Law's Dean Peter Keane, "the most disturbing and the most dangerous result of last year's attack is the outrageous use of those tragic deaths by our government to drastically alter our democracy and brutalize our freedoms."lo Two United States citizens Jose Padilla (aka Abdullah AI Muhajir) (hereinafter, "Padilla") and Yesser Hamdi (hereinafter, "Hamdi") were labeled enemy combatants by President Bush, for alleged acts of terrorism connected with the September 11, 2001 attacks.l1 The government contends Padilla is a close associate of al Qaeda and participated in the planning of future terrorist acts against the United States. 12 In 8 Id. This author is referring to the rights guaranteed to the United States Citizens under the Sixth and Fourteenth Amendment of the United States Constitution. See id. The Sixth Amendment provides each citizen with a right to counsel. U.S. Const. amend. VI. The Fourteenth Amendment provides no citizen shall be deprived of life, liberty, or property without due process under the law. U.S. Const. amend. XIV. 9 ABA Task Force on Treatment of Enemy Combatants, Preliminary Report at 2 4, available at (Aug. 8, 2002). 10 Interview with Peter G. Keane, Dean, Golden Gate University School of Law, in San Francisco, Cal. (Sept. 9, 2002). Peter G. Keane was appointed in 1999 as Dean of Golden Gate University School of Law. His appointment follows a twenty year career as Chief Assistant Public Defender of San Francisco. Id. In addition, he was in the private practice of law from Id. Dean Keane is a former President of the Bar Association of San Francisco and a former Vice President of the State Bar of California. Id. He has appeared on The CBS Evening News, CNN, BBC, ABC World News, Larry King Live, Nightline, Burden of Proof, MSNBC InterNight, and other news programs throughout the world. Id. 11 Resp't Resp. Mot. Dismiss, Am. Pet. for Writ of Habeas Corpus at 12 13, 15, Padilla v. Bush (Aug. 27, 2002) citing Hamdi v. Rumsfield, 296 F.3d 279, 281 (2002), available According to the United States government an enemy combatant [ajrises in the context of foreign relations and national security... [related toj military related judgments in times of active hostilities [for thej protection of Americans.., against unprovoked attack[sj. Id.; See discussion infra Part LD, II.A. 12 Resp't Resp. Mot. Dismiss, Am. Pet. for Writ of Habeas Corpus at 8, Padilla v. Bush (Aug. 27, 2002), available 2

4 Ramirez: Unequal Treatment of U.S. Citizens 2003] UNEQUAL TREATMENT OF U.S. CITIZENS 209 addition, the government believes Padilla possesses information that could aid the United States in preventing future attacks. 13 Similarly the government concluded Hamdi, based on his background and experience, has considerable knowledge of the Taliban and al Qaeda training and operations. 14 The government deems this information as potentially valuable to the United States security.1 5 Meanwhile, another United States citizen, John Phillip Walker Lindh, (hereinafter, "Lindh") although not labeled an enemy combatant, pled guilty in a civilian courtroom to aiding the Taliban and possessing explosives in the commission of that crime.1 6 By not labeling Lindh an enemy combatant, he enjoyed constitutional safeguards denied to Padilla and Hamdi.1 7 Because Padilla and Hamdi are held as enemy combatants, they are detained indefinitely without officially being charged with a crime. Additionally, they are held incommunicado and without a right to counsel. Depriving citizens of liberty without due process of the law, as has been done with both Padilla and Hamdi, raises critical constitutional concerns. The purpose of this comment is not to criticize the government's efforts in apprehending those responsible for the September 11th terrorist attacks. Rather, this comment examines the unequal treatment of United States citizens who are labeled enemy combatants by looking at the factual and procedural background of Padilla, Hamdi and Lindh. Next, pdf; AI Qaida also spelled AI Qaeda is a terrorist group dedicated to opposing non-islamic governments with force and violence. Indictment at 2,United States v. Lindh (Feb. 5, 2002), available 13 Resp't Resp. Mot. Dismiss Am. Pet. for Writ of Habeas Corpus at 8, Padilla vs. Bush (Aug. 27, 2002) citing President Bush's Order (June 9, 2002), available 14 Br. Resp't-Appellants at 9, Hamdi v. Rumsfeld (June 19, 2002), available pdf. The Taliban is an extremist form of Islam, which opposes any threat to its form of religion. Indictment at 3, United States v. Lindh (Feb. 5, 2002), available 15 Br. Resp't-Appellants at 9, Hamdi v. Rumsfeld (June 19, 2002), available 16 Bob Franken and John King, 'I plead guilty,' Taliban American says Plea bargain precludes possible life sentence (July 2, 2002), CNN.coml Law Center, available at W 107/15/walker.lindh. hearing/. 17 Id. Published by GGU Law Digital Commons,

5 Golden Gate University Law Review, Vol. 33, Iss. 2 [2003], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 33 this comment examines the origins of the label enemy combatant and the constitutional safeguards afforded to criminal defendants in similar situations as Padilla, Hamdi, and Lindh. The terrorist acts Padilla, Hamdi, and Lindh are accused of involve international laws. Therefore, this comment will examine the Geneva Conventions as a means to understand humanitarian protections that may cover Padilla and Hamdi. Finally, this comment will provide recommendations for some of the issues raised. 1. BACKGROUND A. JOSE PADILLA'S FACTUAL AND PROCEDURAL BACKGROUND Jose Padilla is a United States citizen by birth. He was born on October 18, 1970, in Brooklyn, New York.l 8 Padilla allegedly traveled to Pakistan, Egypt, Saudi Arabia and Mghanistan as a close associate of the al Qaeda network. 19 In 2001 and 2002, Padilla allegedly met with senior al Qaeda leaders on several occasions. 20 Under the direction of al Qaeda leaders, Padilla received training embodying the wiring of explosive devices. 21 According to the United States government, the training encompassed terrorist operations targeting the United States. 22 These plans subsumed a scheme to detonate explosives devices in hotel rooms and gas stations and a "radiological dispersal device" (dirty bomb) within the United States. 23 The United States government alleges Padilla, under the guidance of al Qaeda leaders, explored and advanced further terrorist attacks against the United States. 24 The government argued that multiple intelligence sources confirmed Padilla's involvement in planning future terrorist attacks by al Qaeda. 25 President Bush recounted Padilla's 18 Jonathan Weisman, Debbie Howlett and Dave Moniz, American terror suspect is not unique, USA TODAY (June 11, 2002), available at 19 See supra note 11 at [d. 21 [d. 22 [d. 23 [d. at [d. 25 [d. at

6 Ramirez: Unequal Treatment of U.S. Citizens 2003] UNEQUAL TREATMENT OF U.S. CITIZENS 211 involvement and ordered his detention as an enemy combatant as follows: Padilla is closely associated with al Qaeda; that he has engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism that had the aim to cause injury to or adverse effects on the United States; that he possesses intelligence, including intelligence about personnel and activities of al Qaeda that, if communicated to the U.S., would aid U.S. efforts to prevent attacks by al Qaeda; that he represents a continuing present and grave danger to the national security of the United States; and that his detention as an enemy combatant is necessary to prevent him from aiding al Qaeda in its efforts to attack the United States or its armed forces, other governmental personnel, or citizens. 26 Padilla was arrested on May 8, 2002, at O'Hare International Airport, just outside of Chicago, Illinois, pursuant to a material witness warrant related to grand jury proceedings in the Southern District of New York (hereinafter, "SDNY").27 Padilla was detained at the Metropolitan Correctional Center in New York. 28 On May 15, 2002, the Honorable Chief Judge Michael B. Mukasey assigned him defense counsel, Donna R. Newman. 29 On June 9, 2002, President Bush determined Padilla was an enemy combatant and thus transferred him to the custody of the United States military. 30 On that same day, without informing defense counsel Newman, the Department of Justice requested that the SDNY vacate the material witness warrant. 3! The government's request was granted [d. citing President Bush's Order (June 9, 2002). 27 Mot. Dismiss, Am. Pet. for Writ of Habeas Corpus at 4 5, Padilla vs. Bush (June 26, 2002), available Pet'r Reply Mot. Dismiss Pet. for Writ of Habeas Corpus at 4, Padilla v. Bush (July 12, 2002), available 28 Mot. Dismiss, Am. Pet. for Writ of Habeas Corpus at 5, Padilla vs. Bush (June 26, 2002), available 29 Am. Pet. for Writ of Habeas Corpus at 2, Padilla v. Bush (June 19, 2002), available 30 See supra note Mot. Dismiss, Am. Pet. for Writ of Habeas Corpus at 5, Padilla v. Bush (June 26, 2002), available Published by GGU Law Digital Commons,

7 Golden Gate University Law Review, Vol. 33, Iss. 2 [2003], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 33 Now under the exclusive control of the United States military, Padilla was transported to the Consolidated Naval Brig in Charleston, South Carolina for detention and questioning. 33 On June 11, 2002, after the material witness warrant was vacated, Newman, as next friend of Jose Padilla, filed a petition for writ of habeas corpus. 34 The writ was amended on June 19, The amended petition of habeas corpus raises the three following claims challenging Padilla's detention: Padilla's detention violates the Fourth, Fifth, and Sixth Amendments of the United States Constitution; the Presidential Order under which Padilla is detained violates Article I of the United States Constitution; Padilla's detention in military custody is unlawful because the civilian courts are open and no martial law exists. 36 On June 26, 2002, the government filed a motion to dismiss the amended petition of habeas corpus. 37 The government contends Newman lacks standing as next friend to bring the habeas corpus petition on behalf of Padilla. 38 Further, the government argues President Bush, Secretary Donald Rumsfeld, and Attorney General Ashcroft are improper Pet'r Reply Mot. Dismiss Pet. for Writ of Habeas Corpus at 5, Padilla v. Bush (July 12, 2002), available 32 See supra note Id. 34 Pet'r Reply Mot. Dismiss Pet. for Writ of Habeas Corpus at 5, Padilla v. Bush (July 12, 2002), available pdf. A writ of habeas corpus is available to every person who claims to be unlawfully imprisoned or restrained. United States v. Commanding Officer, Armed Forces, 403. F.2d 371 (1968). 28 U.S.C (2002) requires a writ of habeas corpus to be in writing, signed, and verified by the person whose relief is sought or by someone acting in his behalf. Id. Since Padilla is held incommunicado and without access to counsel, Donna Newman filed the writ of habeas corpus as next friend of Padilla. See supra note 29. The two requirements for a petition as next friend are set out in Whitmore v. Arkansas, 495 U.S. 149, (1990). First, there must be an explanation outlining why the party for whom the relief is sought cannot sign and verify the writ. Id. Second, the next friend must be truly dedicated to the best interest of the person for whom relief is sought and a significant relationship between the real party in interest must exist. Id. 35 See supra note 29 at See supra note 11at 9-lD. Martial law is the will of the commanding officer. Ex Parte Milligan, 71 U.S. 2, 35 (1866). The notion that in certain cases a proclamation by a commanding officer supplants civil law is erroneous. Id. 37 Mot. Dismiss, Am. Pet. for Writ of Habeas Corpus, Padilla vs. Bush (June 26, 2002), available 38 Id. at

8 Ramirez: Unequal Treatment of U.S. Citizens 2003] UNEQUAL TREATMENT OF U.S. CITIZENS 213 respondents for the habeas corpus. 39 Rather, Padilla's proper custodian is Commander M.A. Mar, the officer in charge of the brig where he is detained. 40 The government further suggests the SDNY lacks territorial jurisdiction over the brig where Padilla is detained. 41 On July 12, 2002, Newman filed a reply to the government's motion to dismiss arguing she possesses the proper standing as next friend to bring the habeas petition on Padilla's behalf.42 Newman maintains the SDNY has jurisdiction over the petition because the proper custodian is not the jailer. 43 The reply states that Commander Marr is not authorized to deliver Padilla's body.44 Therefore, the proper respondents are President Bush and Secretary Rumsfeld. 45 In addition to Padilla's reply to the government's motion to dismiss, the New York State Association of Criminal Defense Lawyers (hereinafter, "NYSACDL") and the National Association of Criminal Defense Lawyers (hereinafter, "NACDL") filed an amici curiae brief in the SDNY to inform the court of those issues NYSACDL and NACDL identified as critical to Padilla's case. 46 These issues include: the court's subject matter and in personam jurisdiction over Padilla's case; Ms. Newman's proper status as "next friend"; President Bush and Secretary Rumsfeld status as proper respondents; Commander Marr's lack of authority as proper respondent; Padilla's illegal detention arising out of the denial of his Constitutional right to legal counsel and to communicate freely with an attorney; the court's ability to review Padilla's cases; Padilla's entitlement to "prisoner of war" status or in the alternative, a hearing as prescribed by the Geneva Conventions if viewed as an enemy combatant. 47 On September 27, 2002, amici submitted a supplemental brief seeking to clarify its 39 [d. at [d. at [d. 42 Pet'r Reply Mot. Dismiss Pet. for Writ of Habeas Corpus at 6-11, Padilla v. Bush (July 12, 2002), available 43 [d. at [d. at [d. at Br. Amici Curiae, Padilla v. Bush (July 2002), available 47 [d. Published by GGU Law Digital Commons,

9 Golden Gate University Law Review, Vol. 33, Iss. 2 [2003], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 33 position in its initial brief. 48 The sole issue amici identified in Padilla's case is his continued unlawful incommunicado detention in military custody as a civilian.49 On August 27,2002, the government submitted a response and a motion to dismiss the amended petition for writ of habeas corpus asserting the lawfulness of Padilla's detention. 50 The government maintains that the President's June 9, 2002, order and the sworn declaration from Michael Mobbs, Special Advisor to the Under Secretary of Defense For Policy, satisfy the judicial review for determining the lawfulness of Padilla's detention. 51 In Mobbs' unclassified declaration, he claims involvement with matters relating to the detention of enemy combatants. 52 In addition, Mobbs declaration states he examined governmental records and reports relevant to Padilla's case and the President's June 9, 2002 order that was based on multiple intelligence sources. 53 However, the records, reports and the intelligence sources used for Mobbs' declaration are not cited. 54 The government submitted a reply in support of its motion to dismiss the amended petition for a writ of habeas corpus on October 11, The government maintains that American jurisprudence allows the military to detain enemy combatants in absence of an official declaration of war.56 In addition, the government argues that Congress supported the President's 48 Supplemental Br. Amici Curiae at 1, Padilla v. Bush (Sept. 27, 2002), available 49 Id. Amici contends that the government's arguments failed in the following four ways: an extra-constitutional status is imposed on a citizen with the label enemy combatant; the United States is legally at war; even in the absence of martial law the American history supports the detention of citizens in military custody; the Commander in Chief warrants complete judicial deference. Id. at Part IV. 60 Resp't Resp. Mot. Dismiss Am. Pet. for Writ of Habeas Corpus at 10-20, Padilla vs. Bush (Aug. 27, 2002), available 51 See supra note 11 at Unclassified Decl. Michael H. Mobbs, Special Advisor to the Under Secretary of Defense for Policy at 1, Padilla v. Bush (Aug. 27, 2002), available 53 Id. 54 Id. at Resp't Reply In Supp. Mot. Dismiss Am. Pet. for Writ of Habeas Corpus, Padilla v. Bush (Oct. 11, 2002), available grply. pdf. 56 Id. at Part I, Subpart A. 8

10 Ramirez: Unequal Treatment of U.S. Citizens 2003] UNEQUAL TREATMENT OF U.S. CITIZENS 215 action.57 The government further argues the President's determination that Padilla is an enemy combatant is entitled to deferential treatment by the courts. 58 The SDNY ordered the petitioner and respondents to submit additional briefing addressing Padilla's right to counsel and the propriety of Mobbs' declaration in camera and ex parte on October 21, Seven days after the order, the government submitted its response arguing that Padilla has no right to counsel because he is an enemy combatant. 6o The government asserts the purpose of Padilla's detention is twofold. 61 First, his detention prevents him from aiding the enemy in executing attacks against the United States. 62 Second, his detention assists the United States military in gathering information necessary to carry out the war.63 The government contends the Sixth Amendment right to counsel is not triggered until the criminal prosecution against Padilla is initiated. 64 Further, the government contends that although the unclassified version of Mobbs' declaration alone establishes the proper determination of Padilla's status as an enemy combatant, the SDNY may consider Mobbs' classified declaration in camera and ex parte. 65 The government maintains the classified version of Mobbs' declaration contains confidential intelligence materials. 66 Moreover, the government argues that due to the ongoing armed conflict, the intelligence materials contained in the declaration are compelling reasons to keep Mobbs' classified declaration in camera and ex parte Id. at Part I, Subpart B. 58 Id. at Part II. 59 Resp't Response This Ct.'s October 21, 2002 Order at 1, Padilla v. Bush (Oct. 28, 2002), available 60 Id. 6! Id. 62 Id. at Id. 64 Id. at Id. at Id. at Id. at 19. Published by GGU Law Digital Commons,

11 Golden Gate University Law Review, Vol. 33, Iss. 2 [2003], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 33 On December 4, 2002, the SDNY delivered an opinion and order. 68 The SDNY denied the government's motion to dismiss the amended petition for a writ of habeas corpus for Newman's lack of standing as next friend of Padilla. 69 The court held the proper respondent in Padilla's case is Secretary Rumsfeld. 70 The court further disclosed that it possesses the proper jurisdiction over the case and Secretary Rumsfeld. 71 The SDNY, however, found the President has the constitutional 68 Op. Order, Padilla v. Bush (Dec. 4, 2002), available 69 Id. at 24. The government contends Newman lacks the significant relationship required by next friend and cites Hamdi as authority. Id. at 18. The SDNY found that Newman was not an intruder or uninvited meddler posing as next of friend. Id. at 20. In fact, Newman consulted with Padilla as his defense counsel during the material witness proceedings. Id. at In addition, Newman consulted with Padilla's family in her role as attorney. Id. at 20. Therefore, the SDNY found that Newman was the one person aware of Padilla's wishes and the person best equipped to achieve them. Id. The SDNY noted the legal issues between the material witness and habeas corpus proceedings are different. Id. The relationship, however, between Newman and Padilla has not changed. Id. Therefore, the SDNY held that Newman has standing to pursue Padilla's petition as next friend. Id. at See supra note 68 at 24. The SDNY found the proper respondent for the writ of habeas corpus was Secretary Rumsfeld because of his personal involvement in Padilla's case. Id. at 32. The President's June 9, 2002 order, charged Secretary Rumsfeld with Padilla's detention. Id. He sent the Department of Defense personnel to take custody of Padilla. Id. Secretary Rumsfeld or his designee determined and sent Padilla to the brig in South Carolina. Id. Finally, Secretary Rumsfeld decides what information is releasable or filtered from Padilla and determines when the danger Padilla poses has passed. Id. Since Secretary Rumsfeld was the proper respondent, the SDNY found it unnecessary to reach a decision determining whether President Bush was the proper respondent in Padilla's case. Id. at 33. A second reason the court dismissed the President as a respondent is based on the relief Padilla seeks. Id. Padilla is not directly seeking relief from the President. Id. Based on the two above-mentioned reasons, President Bush was dismissed as a party to the case. Id. at 34. Similarly, Commander Mar was also dismissed because Secretary Rumsfeld, as proper respondent, could order him to comply with an order. Id. at Thus, the court denied the government's motion to dismiss for lack of jurisdiction or in the alternative transfer of Padilla's case to South Carolina. Id. at See supra note 68 at 3. The court citing Title 18 of the United States Code Section 2241(a) held there was jurisdiction over Padilla's habeas corpus petition if it was authorized under New York's long arm statute. Id. at 44. New York's long arm statute permits a court to exercise personal jurisdiction over cases for non-resident that transact business in person or through an agent within the state. Id. at 45. The statute defines a business broadly and does not limit commercial transactions. Id. at 45. Under New York's long arm statute, the SDNY found personal jurisdiction over Secretary Rumsfeld. Id. The court further denied the government's motion to transfer Padilla's case to South Carolina because the issues pertaining to the proper respondent and jurisdiction favored keeping the case in the SDNY. Id. at The court also cited case law that suggested taking into consideration the convenience and practicality of the parties. Id. Therefore, the court found that those considerations supported keeping the case in the SDNY. Id. 10

12 Ramirez: Unequal Treatment of U.S. Citizens 2003] UNEQUAL TREATMENT OF U.S. CITIZENS 217 authority to detain Padilla.72 Therefore, Padilla's detention is not per se unlawful. 73 The court further held that Padilla may consult with counsel in matters aiding the habeas corpus petition. 74 The SDNY determined Padilla's status as an enemy combatant, is subject to the judicial review standard of some evidence. 75 In addition, the SDNY will not use Mobbs' sealed declaration to determine whether the government has met the standard of some evidence. 76 The SDNY ordered both parties 72 See supra note 68 at The SDNY held that it was unnecessary for a congressional declaration of war to occur in order for the President to exercise his power in an armed conflict. Id. at 50. The SDNY citing the Prize cases, 67 U.S. (2 Black) 635 (1862), found that the United States Supreme Court recognized a war without a declaration of war. Id. The court further reasoned that even if Congressional authorization were necessary, the joint resolution passed on September 14, 2001, fulfilled that requirement. Id. at 53. The court rationalized that the President's June 9, 2002, order simply labeled Padilla an enemy combatant. Id. at An enemy combatant is analogous to an unlawful combatant who is not subject to the protections of the Geneva Conventions. Id. The SDNY citing United States u. Lindh found the Taliban militia unqualified for lawful combatant status. Id. at 60. Therefore the SDNY held that the President's authority to order the detention of unlawful enemy combatants arises under the joint resolution and from his status as Commander-in Chief. Id. at See supra note 68 at 3. In concluding Padilla's detention is not per se unlawful, the SDNY reasoned that the case falls within the exception of Title 18 of the United States Code Section Id. at The court found that Padilla is in fact detained pursuant to an "Act of Congress," the joint resolution. Id. The SDNY further noted the joint resolution qualified as an act of Congress. Id. at 72. The court held that Title 18 of the United States Code Section 4001(a) does not bar Padilla's detention. Id. at 74. Furthermore, the court held that Padilla detention is not barred as a matter oflaw. Id. 74 See supra note 68 at 75. The SDNY held that Padilla has a right to present facts. Id at This right is firmly rooted in the following statutes: Title 28 of the United States Code Section 2241; Title 28 of the United States Code Section 2243; Title 28 of the United States Code Section 2246, the Federal Rules of Civil Procedures; Rules Governing Section 2254; Title 18 of the United States Code Section 3006(a)(2)(B). Id. at The court determined that the most convenient and useful vehicle for Padilla to present facts is through counsel. Id. at 75. The court, however, noted that Padilla has no right to counsel under the Sixth Amendment of the United States Constitution absent criminal proceeding. Id. at See supra note 68 at The SDNY will examine evidence supporting the President's June 9, 2002, order determining Padilla an enemy combatant by the standard of "some evidence." Id. The court cited the deference treatment the Supreme Court and the Fourth Circuit Court of Appeals in United States u. Hamdi grant to the President's constitutional authority. Id. at In addition, the court will examine whether that evidence is mooted by subsequent actions or events to Padilla's detention. Id. at 96. Specifically, the SDNY will look for "some evidence" suggesting that the government's papers support Padilla's hostile status. Id. at See supra note 68 at 90. The SDNY found the sealed Mobbs' declaration did not broaden the nature of the accusations against Padilla compared to the unsealed Mobbs declaration. Id. at 100. The sealed Mobbs declaration sets forth objective circumstantial evidence collaborating factual allegations set out in the sealed Mobbs declaration. Id. Mter Padilla has the opportunity to contest the unsealed Mobbs declaration and if the SDNY finds the government failed to meet the "some evidence" Published by GGU Law Digital Commons,

13 Golden Gate University Law Review, Vol. 33, Iss. 2 [2003], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 33 to discuss and arrange conditions for Newman's consultation with Padilla. 77 The SDNY further scheduled the parties for a conference on December 30, 2002, to report the results of those discussions and arrangements and to schedule further proceedings.78 B. YESSER HAMDI'S FACTUAL AND PROCEDURAL BACKGROUND Yesser Hamdi is a United States citizen by birth.79 He was born on September 26, 1980, in Baton Rouge, Louisiana. 80 In response to the al Qaeda terrorist network attack on the United States on September 11, 2001, the President ordered the United State s armed forces to apprehend al Qaeda and Taliban members.81 During this ongoing military operation, the United States Armed Forces captured Hamdi. 82 He was initially detained at Camp X-Ray at the Naval Base in Guantanamo Bay, Cuba.83 When it came to light that he was born in Louisiana, and may be an American citizen, Hamdi was transported to the Norfolk Naval Station Brig. 84 Allegedly, Hamdi possesses considerable knowledge about the Taliban and the al Qaeda network. 85 Particularly his knowledge pertaining to their training and operations is potentially valuable information to the United States. 86 Therefore, the United States determined Hamdi's continued detention as an enemy combatant comports with the laws and customs of war.87 On May 10, 2002, the Federal Public Defender for the Eastern District of Virginia, Frank Dunham filed a writ of habeas corpus as next friend of Hamdi. 88 On May 29, 2002, the district court granted the writ of habeas corpus and allowed test, the admission of the sealed Mobbs declaration will be reevaluated. Id. at See supra note 68 at Id. 79 Yesser Hamdi, Birth Certificate, available pdf. (last visited Feb. 25,2003). 80 Id. 8! Hamdi v. Rumsfeld, 294 F.3d 598,601 (2002). 82 Id. 83 Id. 84 Id. 85 See supra note 15 at Id. 87 Hamdi v. Rumsfeld, 294 F.3d at Id. at

14 Ramirez: Unequal Treatment of U.S. Citizens 2003] UNEQUAL TREATMENT OF U.S. CITIZENS 219 Hamdi unmonitored access to the public defender.89 The government filed a motion for stay in the court of appeals. 90 While these proceedings were pending, Esam Fouad Hamdi, Hamdi's father, filed a petition for writ of habeas corpus as next friend. 91 On June 11, 2002, the district court concluded that Hamdi's father properly filed his case as next friend. 92 The Federal Public Defender for the Eastern District of Virginia was appointed as counsel for the petitioners, and the court ordered the government to allow the public defender unmonitored access to Hamdi. 93 On July 12, 2002, the Fourth Circuit Court of Appeals reversed the District Court's June 11 th order mandating access to counsel and remanded the case for further proceedings because it appointed counsel and ordered access to the detainee without adequately considering the implications of its actions and before allowing the United States even to respond. 94 On June 14, 2002, the government's motion to stay the proceedings connected with Hamdi was granted by the Fourth District Court of Appeals. 95 On July 31, 2002, the district court for the Eastern District of Virginia ordered the government to produce numerous materials that were redacted to protect intelligence information for in camera review. 96 The court's production order requested sua sponte copies of all statements made by enemy combatants, notes taken from any interviews with enemy combatants, contact information on anyone who interrogated enemy combatants, copies of all statements made by the Northern Alliance concerning enemy combatants, and chronology of the detention of the enemy combatants while in military control. 97 The district court further ordered the 89 [d. at Hamdi v. Rumsfeld, 296 F.3d 278, 280 (2002). 91 [d. 92 [d. 93 [d. 94 [d. at Order at 1-2, Hamdi v. Rumsfeld (Aug. 7, 2002), available 96 Resp't Mot. Relief From This Ct.'s Prod. Order of July 31, 2002 at 1, Hamdi v. Rumsfeld (Aug. 5, 2002), available Resp't Mem. In Supp. Mot. Relief from This Ct.'s Prod. Order of July 31, 2002 at 1-3, Hamdi v. Rumsfeld (Aug. 5, 2002), available pdf. 97 Resp't Mem. In Supp. Mot. Relief from This Ct.'s Prod. Order of July 31, 2002 at Published by GGU Law Digital Commons,

15 Golden Gate University Law Review, Vol. 33, Iss. 2 [2003], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 33 government to appear for arguments on August 8, 2002, pertaining to the information submitted in accordance with its July 31st production order.98 On August 5, 2002, the government filed a motion for relief from the district court's July 31st production order, on the grounds the order produced an insidious burden on the government.99 Further, the government contends the information is not necessary for the resolution of the habeas corpus petition or respondent's motion to dismiss.1 o On August 7, 2002, the district court's order issued an order canceling the hearing scheduled for August 8, 2002, pending Hamdi's motion to dissolve the stay with the court of appeals.1 01 On August 8, 2002, the Fourth District Court of Appeals dissolved its June 14, 2002, stay order.1 02 The court of appeals furthered directed the district court to resolve the issue of whether Mobbs' declaration was sufficient, on its own, to detain Hamdi without being charged, without right to counsel, and incommunicado. 103 On August 16, 2002, pursuant to the directions provided by the court of appeals, the district court examined Mobbs' declaration, read briefs submitted by both parties, and heard oral arguments on the matter.1 04 The district court held Mobbs' declaration was insufficient to detain 1-3, Hamdi v. Rumsfeld (Aug. 5, 2002), available 98 Id. at Id. 100 Id. at See supra note Order at 4-5, Hamdi v. Rumsfeld (Aug. 16, 2002), available Id. at 1-2. Michael H. Mobbs declaration was attached to the Respondent's brief submitted on July 25, Id. at 9. Mobbs' Declaration was a two page long document, which failed to address critical issues to Hamdi's case. Id. The district court found the declaration lacked the following: the nature and authority Mobbs possesses to review and make declarations on behalf of the Executive Branch determining Hamdi's status; the authority a Special Advisor of Defense for Policy has for labeling citizens enemy combatants; intelligence information or the gathering of intelligence information pertaining to Hamdi; information explaining why Hamdi is treated differently than all other captured Taliban; the authority and the procedures used to conclude Hamdi's capture was lawful; the authority and the procedures authorizing Mobbs to supervise the classification of enemy combatants; details surrounding Hamdi's detention and transfer to military custody. Id. at These questions were further asked during oral arguments and Respondents' counsel was unable to answer. Id. at Id. 14

16 Ramirez: Unequal Treatment of U.S. Citizens 2003] UNEQUAL TREATMENT OF U.S. CITIZENS 221 Hamdi. 105 The government's motion for relief from the district court's production order on July 31st filed on August 5, 2002, was denied. 106 The court ordered the government to comply with its July 31st production order by August 21, On August 19, 2002, the government filed a motion for certification of interlocutory appeal and stay claiming the district court's August 16, 2002, holding implicates an important question of deferential treatment owed to military decisions and requires sensitive national security information. l08 The government contends the August 16, 2002, order involves a controlling issue of law, which will determine the outcome of the case. 109 In addition, the government requests a stay of Hamdi's proceeding while the issue is resolved. llo C. JOHN PHILLIP WALKER LINDH'S FACTUAL AND PROCEDURAL BACKGROUND John Phillip Walker Lindh is a United States citizen by birth.lll He was born in February 1981, in Washington, D.C.ll2 Lindh's indictment alleged the following counts: [C]onspiracy to murder United States Nationals including civilians and military personnel by committing murder; conspiracy to provide materials support and resources to Harakat ul-mujahideen (HUM) and providing material support and resources to the HUM; conspiracy to provide material support and resources to al Qaeda and providing material support and resources to al Qaeda; conspiracy to contribute services to al Qaeda and contributing services to al 105 Id. at 2, Id. at Id. 108 Resp't Mot. Certification Interlocutory Appeal and Stay at 1, Hamdi v. Rumsfield (Aug. 19, 2002), available A court may certify an interlocutory order under 28 U.S.C. 1292(b) if the following criteria is met: an order involves a controlling question of law; substantial grounds for a difference of opinion regarding the question of law; an immediate appeal from the order may determine the outcome of the litigation. Id. at 2. \09 Id. 110 Id. at Profile: John Walker Lindh, (Thursday, Jan. 24, 2002), available at Id. Published by GGU Law Digital Commons,

17 Golden Gate University Law Review, Vol. 33, Iss. 2 [2003], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 33 Qaeda; conspiracy to supply services to the Taliban and supplying services to the Taliban; using, carrying, and possessing firearms and destructive devices during violent crimes. 113 On or about November 25,2001, Lindh surrendered to the Northern Alliance during an ongoing civil war against the Taliban. 114 Johnny Spann, a Central Intelligence Agency employee was conducting interviews of captured Taliban personnel at the Aala-iJanghi (QIJ) compound near Mghanistan. 115 Among the individuals interviewed was Lindh. 116 Shortly after Spann interviewed Lindh, prisoners staged an uprising, which ultimately ended Spann's life.1 17 The situation was controlled after several days.118 Lindh was shot in the leg as he attempted to escape. 1l9 On December 1, 2001, the Northern Alliance soldiers detained Lindh with the assistance of United States military personnel.1 20 Mter Lindh was identified as a United States national, he was given medical assistance and interrogated Indictment at 6 14, United States u. Lindh (Feb. 5, 2002), available Harakat ul Mujahideen (HUM) is a terrorist group dedicated to Islam's extremist views. Id. at Criminal CompI. at 2, United States v. Lindh (Jan. 15, 2002), available The Northern Alliance, which fought to overthrow the Taliban's militia control of Mghanistan, was a coalition of non-pashtun groups who opposed the Taliban., Indictment at 3, United States v. Lindh (Feb. 5, 2002), available According to CNN, the United States exchanged and gave information to the Northern Alliance. Northern Alliance: U.S. strikes accurate, CNN Report available at (Oct. 7, 2001). 115 Criminal CompI. at 2, United States v. Lindh (Jan. 15,2002), available Id. 117 Id. 118 Id. 119 Id. at. 10. Pashtun is the ethnic majority in Mghanistan. Indictment at 3, United States v. Lindh (Feb. 5, 2002), available Br. Amici Curiae Int'l Human Rights Org. In Supp. of Def. Mot. Suppress Involuntary Statements and Evidence at 3, United States u. Lindh (June 18, 2002), available ammot. pdf. 121 Criminal Com pi. at 2-3, United States u. Lindh (Jan. 15, 2002), available

18 Ramirez: Unequal Treatment of U.S. Citizens 2003] UNEQUAL TREATMENT OF U.S. CITIZENS 223 On March 15, 2002, the defense filed a motion to compel production of discovery with the Eastern District of Virginia. 122 The motion moved the court for an order compelling the government to comply with the Federal Rules of Criminal Procedure 16(a).1 23 Lindh sought identifying information for the following individuals the government claimed as confidential sources: individuals who participated in his interrogations; individuals the government redacted from reports; individuals who wrote documents pertaining to statements allegedly made by Lindh; individuals who guarded and maintained contact with Lindh; and all other information referencing Lindh. 124 On June 17, 2002, Lindh filed a motion to suppress involuntary statements and evidence.1 25 In support of Lindh's motion, the International Human Rights Organization filed a amici curiae brief on July 10, This amici consists of several human rights organizations dedicated to the consistent application of internationallaws. 127 Amici identified two issues critical to Lindh's case.1 28 First, they allege the tortures, cruel, inhuman and degrading treatment endured by Lindh while in the custody of the United States, are prohibited by internationallaws. 129 Second, they allege statements given by Lindh, obtained through torture and coercion, are forbidden by 122 Notice Mot. and Mot. Compel Prod. Disc., United States v. Lindh (March 15, 2002), available http;iinews.findlaw.comlhdocs/docsllindhluslindh31502discmot.pdf. 123 [d. at 1. The Federal Rules of Criminal Procedure 16(a) permits the defendant to obtain relevant written or recorded statements made before or after his or her arrest, if used at trial. Fed. R. Crim. P. 16(a). 124 Notice Mot. and Mot. Compel Prod. Disc. at 2 9, United States v. Lindh (March 15,2001), available http;linews.findlaw.comlhdocs/docsllindhluslindh31502discmot.pdf. 125 Def. Notice and Mot. Suppress Statements on Dec. 1, 2001, U.S. Special Forces and Robert Felton, United States v. Lindh (June 17, 2002), available http;iinews.findlaw.comlhdocs/docsllindhluslindh61702sfsupmot.pdf. 126 Mot. Leave To File Br. of Amici Curiae and Br. of Amici Curiae Int'l Human Rights Org. In Supp. Def. Mot. Suppress Involuntary Statements and Evidence, United States v. Lindh (June 18, 2002), available http;linews.findlaw.comlhdocs/docsllindhluslindh71002ammot.pdf. 127 [d. at 1. The following organizations support Amici; the Center for Constitutional Rights, the Center for Justice & Accountability, the Extradition and Human Rights Committee of the American Branch of the International Law Association, Human Rights Advocates, and World Organization Against Torture USA. [d. at Br. Amici Curiae Int'l Human Rights Org. In Supp. of Def. Mot. Suppress Involuntary Statements and Evidence at 5, United States v. Lindh (June 18, 2002), available http;linews.findlaw.comlhdocsldocsllindhluslindh71002ammot.pdf. 129 [d. Published by GGU Law Digital Commons,

19 Golden Gate University Law Review, Vol. 33, Iss. 2 [2003], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 33 international laws.130 Amici sought to exclude evidence and statements obtained through coercion and torture. 131 On July 15, 2002, Lindh and his team of lawyers entered into a plea agreement with United States Attorneys for the Eastern District of Virginia by pleading guilty to two crimes. 132 The first crime consisted of supplying services to the Taliban. 133 The second crime consisted of carrying explosives in the course of supplying services to the Taliban.134 In conjunction with the plea agreement, both parties stipulated and agreed to the following facts. On June 30, 2000, President William J. Clinton declared the nation in state of emergency because of threats posed by al Qaeda and the Taliban.135 The nation's state of emergency continued with President's Bush declaration that the Taliban continued to use Mghanistan as a safe heaven for the operations of Usama bin Laden and the al Qaeda network. 13G In Mayor June of 2001, Lindh traveled to Mghanistan with the purpose of assisting the Taliban in its fight against the Northern Alliance.137 During the same time, Lindh revealed to the Taliban recruiting personnel that he was an American citizen and wanted to fight in the front lines.13b Additionally, Lindh disclosed his desire to undergo military preparation at a training camp.139 Lindh participated fully in the training activities.140 His training included "weapons, orienteering, navigation, explosives and battlefield combat."141 Mter completing his training a;nd 130 Id. 131 Id. at Some of the examples of torture and coercion Lindh endured are highlighted in Amici's brief. Id. at 3-5. Some of the examples are: Lindh bound, blindfolded, and handcuffed while in custody; derogatory and threatening statements including death threats; plastic straps used to bind Lindh's hands which cut into his skin and cut off his circulation; Lindh was stripped naked and bound to a stretcher; Lindh was placed in a metal storage container with no windows, and no heat source; Lindh was provided with minimal food and medical attention. Id. 132 Def. Sentencing Mem. at 3,11, United States v. Lindh (Sept. 26, 2002), available Id. at II. 134 Id. 135 Statement of Facts, United States v. Lindh (July 15, 2002), available sof. pdf. 136 Id. 137 Id. 138 Id. 139 Id. 140 Id. 141 Id. 18

20 Ramirez: Unequal Treatment of U.S. Citizens 2003] UNEQUAL TREATMENT OF U.S. CITIZENS 225 pledging allegiance to jihad, Lindh traveled to the front line in Takhar, Mghanistan bearing an AKM rifle.1 42 Between September and November of 2001, Lindh and his fighting group rotated shifts fighting against the Northern Alliance.1 43 Lindh, knowingly engaging in a commission of a felony, carried a rifle and grenades. 144 As part of the plea agreement, both parties concurred that Lindh's sentence would be twenty years in prison.1 45 Defense counsel, however, requested from the court that Lindh gain access to a facility with educational opportunities at the university level as well as one close to his family's residence in California. 146 Such a request was based on the notion that Lindh possessed knowledge and intelligence that could assist the United States in countering future terrorist threats.1 47 Therefore, providing Lindh access to higher education can only further the United States efforts in countering future terrorist threats. 148 D. ENEMY COMBATANT Labeling individuals as enemy combatants originated during World War II.1 49 On July 2, 1942, President Franklin D. Roosevelt issued Proclamation No (hereinafter, "Proclamation") demanding that enemies entering the United States committing sabotage, espionage, or warlike acts be tried WIthin the laws ofwar.1 50 The proclamation asserted that any person charged with attempting to commit or committing sabotage, espionage, or warlike acts, is subject to a military tribunal and prohibited from seeking remedies from civilian United States Courts.1 51 The Proclamation cites the 142 ld. 143 [d. 144 Id. 145 Plea Agreement, United States v. Lindh (July 15, 2002), available 146Def.SentenCingMem.at1, United States v. Lindh (Sept. 26, 2002), available Id. at [d. 149 See supra note 9 citing Ex parte Quirin v. United States, 317 U.S. 1 (1942) Proclamation No. 2561, 7 Fed. Reg. 5101, and in 56 Stat (July 2, 1942). [d. Published by GGU Law Digital Commons,

21 Golden Gate University Law Review, Vol. 33, Iss. 2 [2003], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 33 Constitution and United States Statues as authority for prosecuting individuals before military tribunals. 152 The United States government contends that citizens are detainable indefinitely upon its "say-so."153 The government asserts the authority to label citizens as enemy combatants and cites Ex Parte Quirin for support. 154 In Ex Parte Quirin, the President Franklin D. Roosevelt acting within his power as Commander in Chief appointed a military commission to try the petitioners for "offensives against the law of war and the Articles of War..."155 At the time, the United States declared war against the German Reich. 156 One of the accused claimed United States citizenship. 157 All of the accused, wearing German infantry uniforms, emerged from submarines and entered the United States carrying explosives, flammable articles and timing devices. 158 Upon coming ashore in the United States, they discarded their uniforms and embarked on the execution of their sabotage plans.159 They were apprehended before the execution of these plans.160 The United States Supreme Court considered whether the President acted within his power when he authorized trials by military commissions. 161 The President, as Commander in Chief, appointed a Military Commission to try offenses against the laws of war.162 As Commander in Chief, the President must carry into effect all laws passed by Congress for the conduct of war.163 The Court explicitly stated that citizenship was not an issue in the case because the crime violated the laws of war.164 The Court held that the President's July 2, 1942, Proclamation Order was authorized by the 152 [d. 153 See supra note 9 at 3; Hamdi, 296 F.3d at 283. The government contends that American citizens "alleged to be an enemy combatant could be detained indefinitely without charges or counsel on the government's say so." [d. 154 Hamdi, 296 F.3d at Ex parte Quirin, 317 U.S. at [d. at [d. at [d. at [d. 160 [d. at Id. at [d. The President's power as Commander in Chief is derived from the Constitution. [d. at [d. at [d. at

22 Ramirez: Unequal Treatment of U.S. Citizens 2003] UNEQUAL TREATMENT OF U.S. CITIZENS 227 Constitution. 165 Thus, the President's measures ordering the accused to be tried before a military tribunal was lawful,l66 In contrast to the facts in Ex Parte Quirin, Congress did not declared war at the time of Padilla, Hamdi, and Lindh's detention. On September 18, 2001, Congress passed a Joint Resolution but did not authorize an official declaration of war.167 The Joint Resolution authorized President Bush to: [U]se all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. 168 In addition to Ex parte Quirin, the government relied on In re Territo for its authority to detain enemy combatants irrespective of their United States citizenship. 169 In Territo, an American citizen was captured in the battlefield and legally held as a prisoner of war during World War II.l7O The Ninth Circuit acknowledged that the accused was a United States citizen, but deemed that citizenship did not shield the prisoner from the governing laws during a time of war,171 Thus, Territo provides authority for the government to detain a United States citizen as a prisoner of war.172 In contrast to the cases the government cites as authority to detain enemy combatants irrespective of their citizenship, 165 ld. at ld. 167 S.J. Res. 23, 107 th Congo (2001) (enacted). In contrast to a joint resolution, the Senate and the House of Representatives expressly authorized an official congressional declaration of war in a statute. S.J. Res. 119, 77th Cong., 55 Stat. 796 (1941). The last congressional declaration of war occurred on December 11, ld. Congress declared war between the Government of Germany and the United States. ld. In addition, on the same day, Congress declared war between the Government of Italy and the United States. S.J.Res. 120, 77 th Cong., 55 Stat 796, 797. In both statutes Congress formally declared war and authorized the President to employ the entire naval and military forces to engage in war against the respective governments and to bring the conflict to a successful termination. ld. 168 S.J. Res. 23, 107 th Congo (2001) (enacted). 169 Hamdi, 296 F.3d at 283 citing In re Territo, 156 F.2d 142 (9 th Cir. 1946). 170 In re Territo, 156 F.2d at ld. at ld. at 148. Published by GGU Law Digital Commons,

23 Golden Gate University Law Review, Vol. 33, Iss. 2 [2003], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 33 the American Bar Association Task Force on Treatment of Enemy Combatants, Newman, NYSACDL, and NACDL argue that the United States Supreme Court case Ex Parte Milligan is in fact, the controlling precedent for Padilla and Hamdi's case,173 In Ex Parte Miligan a military commander arrested a United States citizen in his Indiana residence,174 Upon trial before a military commission, Milligan was charged with conspiring against the United States, aiding rebels against the United States, inciting a rebellion, disloyal practices, and violating the laws of war,l75 Milligan challenged the commission's authority to prosecute him, however, the objection was overruled,l76 The military commission found Milligan guilty on all the charges and sentenced him to death,l77 Milligan filed his petition for writ of habeas corpus with the District Court of Indiana,l78 The Supreme Court granted certiorari,179 The Court concluded that if President Andrew Johnson's Order detained a citizen, except as a prisoner of war, the Court could examme the lawfulness of the government's imprisonment,l80 The Court found that Milligan was imprisoned solely under the authority of the President,l81 The Court understood the Constitution to apply equally to all citizens in times of peace and war,l82 The Court held that the military commission did not have jurisdiction to prosecute Milligan,l See supra note 9 at 19, 25; Am. Pet. for Writ of Habeas Corpus at 7, Padilla v. Bush (June 19, 2002), available Supplemental Br. Amici Curiae at Part I, Subpart A, B, Padilla v. Bush (Sept. 27, 2002), available Ex Parte Milligan, 71 U.S. 2, 6 (1866). 175 [d. 176 [d. at [d. 178 [d. 179 [d. at [d. at [d. at [d. at [d. at

24 Ramirez: Unequal Treatment of U.S. Citizens 2003] UNEQUAL TREATMENT OF U.S. CITIZENS 229 E. THE MILITARY ORDER President Bush issued a Military Order on November 13, 2001, entitled "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism."184 The President issued the military order in response to Congress' authorization to use all necessary force against those responsible for the September 11, 2001, attacks. 185 Although Congress did not officially declare war, Hamdi and Padilla remain detained pursuant to Congress' Joint Resolution. 186 The President's Military Order authorized perpetrators acting alone or in concert, intending to engage or engaging in terrorist acts against the United States to be tried by a military commission. 187 The Military Order identifies the United States in a state of "national security," and provides data on international terrorists, naming members of al Qaeda as responsible for carrying out the September 11, 2001, terrorist attacks. 188 The findings proclaim the attacks created a state of armed conflict, justifying the use of Armed Forces. 189 In addition, the Military Order confers exclusive jurisdiction over non-citizens.l 9o The President, however, may determine from "time to time" who the exclusive jurisdiction may cover.191 As authority for executing the Military Order, President Bush cites Senate Joint Resolution 23 "Authorization for Use of Military Force" and Section 836 of Title 10 of the United States Code.l 92 Joint Resolution 23 permits the President to use all necessary and appropriate force. 193 While Section 836 of Title 184 Mil. Order, 66 Fed. Reg (Nov. 13, 2001). 185 Id. 186 See supra note 11 at Resp't Mot. Stay Mag. J. May 20, 2002 Order Regarding Access Mem. Supp. at 3-4, Hamdi v. Rumsfeld (May 23, 2002), available Resp't Resp. Mot. Dismiss, Am. Pet. For Writ of Habeas Corpus at 4-6, Padilla v. Bush (Aug. 27, 2002), available Mil. Order, 66 Fed. Reg (Nov. 13, 2001). 188 Mil. Order, 66 Fed. Reg at Section 1 (Nov. 13, 2001). 189 Id. at Section l(a). 190 Id. at Section 7(b)(1). 191 Id. at Section 2(a), Section 7(b). 192 See supra note S.J. Res. 23, 107'h Congo (2001) (enacted); See supra note 9 at 6. Published by GGU Law Digital Commons,

25 Golden Gate University Law Review, Vol. 33, Iss. 2 [2003], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol of the United States Code specifically states that the President may prescribe rules governing military tribunals and these rules are proper if they do not violate the Constitution.l 94 The Department of Defense was authorized to develop the policies and procedures for the military tribunals in accordance with the November 13, 2001 Military Order by President Bush.195 On March 21, 2002, the Department of Defense issued Military Commission Order No.1 (hereinafter, "Order") with the purpose of ensuring that individuals subject to the military tribunals receive a full and fair trial.196 The accused may select a "detailed defense counsel," which is a military officer or a civilian attorney.197 The guidelines, however, are unlike the procedural rules that govern civilian courts. According to the Order, limited disclosure of protected information from documents is allowed in the proceedings.19b Evidence is admissible if it has reasonable probative value. 199 The commission may, on its own initiative, summon and hear witnesses via telephone, audiovisual or any other means it deems appropriate.20o Post-trial procedures consist of an administrative review. 201 Mter the administrative review, a review panel examines the trial record. 202 The review panel, in its discretion, may forward the record of trial to the Secretary of Defense or return the case to the "Appointed Authority" for further proceedings only if a "material error of law occurred."203 The commission's charges and sentences including, death or life in prison, are binding when the President or the Secretary of Defense make the final decision USCA 836 (West 2002). 195 Dept. of Def, Mil. Comm'n Order No.1 (March 21,2002), available Id. 197 Id. at Section 4 (C)(2)(a)(b). 198 Id. at Section 6(D)(5)(b). 199 Id. at Section 6(D)(1). 200 Id. at Section 6(D)(2)(a). 201 Id. at Section 6(H)(3). 202 Id. at Section 6(H)(4). 203 Id. 204 Id. at Section 6 (H)(2)(6). 24

26 Ramirez: Unequal Treatment of U.S. Citizens 2003] UNEQUAL TREATMENT OF U.S. CITIZENS 231 F. TITLE 18 OF THE UNITED STATES CODE SECTION 4001(A) Congress, through Title 18 of the United States Code Section 4001(a), prohibited the detention of citizens who are not officially charged with a crime. 205 However, President Bush's authority for detaining Padilla and Hamdi comes under the guise of Congress' Joint Resolution 23 and the President's Military Order.206 This authority arguably allows the government to detain citizens indefinitely, without right to counsel, and incommunicado. 207 The language of the Title 18 Section 4001(a) establishes limitations on the control and detention of citizens. 208 The statute reads: "[n]o citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress."209 In Howe v. Smith, a prisoner held in Vermont, who was transferred to federal prison, challenged the Attorney General and the Federal Government's authority to receive and hold him in a federal penitentiary.210 The Court acknowledged in a footnote that the language of Section 4001(a) prohibited detention of "any kind" without congressional authorization.2l1 The Court interpreted Section 4001(a) to mean that persons protected by the Constitution shall not be detained indefinitely without congressional authority. In 1971, Section 4001(a) was amended to prohibit the detention and control of United States citizens where statutory basis for incarceration exist. 212 Moreover, the amended statute repealed the Emergency Detention Act of 1950 (Title II of the Internal Security Act of 1950), which authorized the establishment of detention camps and imposed conditions for their use. 213 The Emergency Detention Act of 1950 was USCA 4001(a) (West 2002); See also Stephen I. Vladeck, A Small Problem of Precedent: 18 U.S.C. 4001(a) and the Detention of U.S. Citizen "Enemy Combatants," 112 YALE L.J. 961 (2003) (discussing 18 U.S.C. 4001(a) in light of the detention of United States citizens as enemy combatants). 206 See supra note 28 at 3-4; Hamdi, 294 F.3d at Pet'r Reply supra note 42 at 5; Hamdi, 294 F.3d at USCA 4001(a) (West 2002); See supra note 9 at USCA 4001(a) (West 2002); See supra note 9 at Howe v. Smith, 452 U.S. 473, 479 (1981); See supra note 9 at 11. Only one Supreme Court case has made mention of Section 4001(a). Id. 211 Howe v. Smith, 452 U.S. at Pub. L No ; See supra note 9 at Pub. L. No ; See supra note 9 at 11. Published by GGU Law Digital Commons,

27 Golden Gate University Law Review, Vol. 33, Iss. 2 [2003], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 33 enacted at the onset of the Korean War.214 The Act established procedures for dealing with individuals who intended to commit, or commited acts of sabotage or espionage. 215 The House Report acknowledged that the statute was subject to grave challenge, as it required only the intent to commit, or a reasonable belief that an individual would commit, sabotage or espionage.216 G. INTERNATIONAL LAws AND TREATY CONSIDERATIONS In 1945, the United Nations created the United Nations Charter.217 The Charter was established to address threats to international peace. Particularly, the Charter identified basic humanitarian standards to be followed by all United Nations members at times of peace and war.218 On December 10, 1948, the United States signed the United Nations' Universal Declaration of Human Rights (hereinafter, "Declaration").219 The Declaration is a pledge to promote fundamental human rights and dignity and to maintain friendly relationships between nations.220 As a member of the Charter and as a signatory of the Declaration, the United States pledged to respect human dignity and rights and to recognize fundamental freedoms. 221 Specifically, the Declaration declares 214 Pub. L. No ; See supra note 9 at 11, fn Id. 216 Pub. L. No Inter-Allied Declaration, June 12, 1941, available The Inter-Allied Declaration signed on June 12, 1941, "was the first step towards the establishment of the United Nations." Id. This Declaration was an agreement "to work together, with other free peoples, both in war and in peace." Id. On August 14, 1941 the President of the United States, Franklin Delano Roosevelt, and Prime Minister Winston Churchill of the United Kingdom proposed a set of principles intended to maintain international peace and security. Id. During World War II, President Franklin D. Roosevelt, along with the heads of twenty-six other nations pledged their governments to continue to fight against Germany, Italy, Japan and associated countries while recognizing basic humanitarian rights. Id. The Charter was created in 1945 at a United Nations conference in San Francisco with representatives of 50 countries. Id. 218 Id. 219 Universal Declaration of Human Rights, Office of the U.N.High Commissioner for Human Rights Geneva, Switzerland, Press Kit (Dec. 10, 1948), available Universal Declaration of Human Rights, Dec. 10, 1948, available Id. 26

28 Ramirez: Unequal Treatment of U.S. Citizens 2003] UNEQUAL TREATMENT OF U.S. CITIZENS 233 that the preservation of human rights is essential,222 Article 3 of the Declaration preserves individual's rights to life, liberty and security. 223 The day after the September 11th attacks, the United Nations Security Council enacted Resolution The Resolution sought to reaffirm the purpose under which the Charter was created and to address threats to international peace. 225 The Resolution called upon its Member States to cooperate with one another to bring to justice those responsible for the September 11th attacks.226 H. GENEVA CONVENTIONS The term enemy combatant, which Padilla and Hamdi are designated, is raised in the Third and Fourth Geneva Conventions.227 The Conventions govern the treatment of lawful and unlawful enemy combatants. 228 Further, the Conventions established the foundation for contemporary humanitarian law [d. 223 [d. at art. 3. Article 3 of the Declaration preserves individual's rights to life, liberty and security. [d. Article 8 of the Declaration authorizes an effective remedy by competent national tribunals when fundamental rights by the constitution or laws are violated. [d. at. art. 8. Article 9 of the Declaration prohibits its members from subjecting individuals to arbitrary arrests, detentions or exiles. [d. at art. 9. In addition, Article 28 entitles everyone to a social and international order where the rights and freedoms set forth in this Declaration are recognized. [d. at U.N. Security Council Resolution 1368, Sept. 12,2001, available [d. 226 [d. 227 Geneva Convention Relative to the Treatment of Prisoners of War, opened for signature Aug. 12, 1949-Feb. 12, 1950, 6 U.S.T (date of entry into force with respect to the United States of America: Feb. 2, 1956) [hereinafter Geneva III], available a e636b/6fef854a351 7b75ac e004age68?OpenDocument; Geneva Convention Relative to the Protections of Civilian Persons in Time of War, opened for signature Aug. 12, 1949-Feb. 12, 1950, 6 U.S.T (date of entry into force with respect to the United States of America: Feb. 2, 1956) [hereinafter Geneva IV], available e004aa3c5?OpenDocument; See also supra note 9 at HR 5071, 107 th Cong., 148 CONGo REC (2002); See generally The History of Humanitarian Law, available (last visited Feb. 18, 2003). 229 See generally The History of Humanitarian Law, available (last visited Feb. 18, 2003). The Geneva Conventions were written rules to protect the victims of conflicts; open to all Published by GGU Law Digital Commons,

29 Golden Gate University Law Review, Vol. 33, Iss. 2 [2003], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 33 On August 12, 1949, sixty-one Nations, including the United States, signed the Geneva Conventions.23o The Conventions established regulations for persons during an official declaration of war or armed conflict. 231 The First and Second Geneva Conventions set out standards for the wounded and the sick ofthe armed forces in the field and at sea. 232 Each Convention is premised on the notion that each individual who finds themselves under the authority of an adverse party is entitled to respect for his or her life, dignity, personal rights, and political and religious convictions.233 Each individual is protected against acts of violence or reprisal and each is also entitled to communicate with his or her families and receive aid.234 The Third and Fourth Geneva Conventions specifically address prisoners of war and lawful enemy combatants.235 The Third Geneva Convention governs the treatment of prisoners of war.236 Prisoners of war fall into six specific categories.237 These categories include: members of the Armed Forces of either side of the conflict; members that are commanded by a party of the armed conflict or contain fixed distinctive insignia or carry arms openly or operations comport with the laws of war; members who proclaim allegiance to armed forces not recognized by the detaining power; people who accompany the states and the obligation extends without discrimination to the wounded and sick; and respect for medical personnel transporting equipment. Id. 230 Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature Aug. 12, 1949-Feb. 12, 1950, 6 U.S.T (date of entry into force with respect to the United States of America: Feb. 2, 1956) [hereinafter Geneva II], available e004a9977?OpenDocument. 231 Id.; ABA Task Force on Treatment of Enemy Combatants, Preliminary Report at 13 (Aug. 8, 2002) available at See generally supra note Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature Aug. 12, 1949-Feb. 12, 1950, 6 U.S.T (date of entry into force with respect to the United States of America: Feb. 2, 1956)[hereinafter Geneva I], available e004a92f3?OpenDocument; See supra note See supra note 229 and accompanying text. 234 See supra note 229 and accompanying text. 235 Geneva III and IV, supra note Geneva III, supra note 227, art. 4, 6 U.S.T. at 3320, Id. 28

30 Ramirez: Unequal Treatment of U.S. Citizens 2003] UNEQUAL TREATMENT OF U.S. CITIZENS 235 armed forces but are not members; crew members; inhabitants of non-occupied territory are lawful enemy combatants. 238 The Geneva Conventions provide a minimum standard for the humane treatment of prisoners of war.239 Distinctions based on race, religion, sex, wealth or other similar criteria are prohibited. 240 Further, violence, torture, humiliation, degrading treatment, sentencing and execution are barred, absent the safeguards afforded to civilians.241 Additionally, treatment for the sick and wounded is required. 242 Even those not considered prisoners of war, within the language of the Third Geneva Convention, are still afforded protection under the Fourth Geneva Convention. The Fourth Geneva Convention governs the treatment of civilian persons in time of war.243 Article 4 of the Fourth Geneva Convention provides protections to people who are not nationals of the detaining power or adverse power and find themselves in the conflict.244 A person who is a threat to security is not protected under the Geneva Conventions. 245 Article 5 of the Fourth Geneva Convention specifically excludes individuals who are suspected of, or engage in, hostile activities that affect the state security from protections prescribed under the Geneva Conventions. 246 The Fourth Convention, however, clearly states that no one who is protected should be deprived of the type of fair trial prescribed by the Geneva Convention MILITARY TRIBUNALS ACT 2002 AND THE SEPARATION OF POWERS While in military custody, Padilla and Hamdi may be subject to the laws governing military tribunals. Congress, however, did not authorized the use of military tribunals. 248 On July 9, 2002, California Congressmen, Adam Schiff, 238 Id. 239 Id. at art. 3,6 U.S.T. at 3318, Id. 241 Id. 242 Id. 243 Geneva IV, supra note Geneva IV, supra note 227, art. 4, 6 U.S.T. at Geneva IV, supra note 227, art. 5, 6 U.S.T. at 3520, Id. 247 Id. 248 HR 5071, 107 th Cong., 148 CONGo REC (2002). Published by GGU Law Digital Commons,

31 Golden Gate University Law Review, Vol. 33, Iss. 2 [2003], Art GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 33 introduced a bill seeking congressional authorization for tribunals to prosecute unlawful combatants in the war on terrorism. 249 Article I, Section 8 of the Constitution gives Congress the power to create tribunals inferior to the Supreme Court, which includes the power to authorize military tribunals.250 These powers not only permit Congress to authorize military tribunals, but also permit the creation of rules governing captures and the rules that define and punish offenses. 251 Schiffs bill, the Military Tribunals Act of 2002, seeks jurisdiction over non-citizens, non-united States residents, "unlawful combatants, al-qaeda members, and those working in concert with them to attack the United States."252 Under the bill, the right to due process and humane treatment and the right to petition for writ of habeas corpus in the military tribunals are preserved.253 The bill requires the President to report to Congress information on the detainees, the basis for their detention, and a timetable for their detention. 254 The trial proceedings are open to the public. 255 Evidence, however, from the Federal Government may be concealed if the evidence hinders the prosecution, military, or intelligence. 256 II. DISCUSSION The events occurring on September 11, 2001, were tragic. Thousands of innocent lives were lost as the result of terrorist attacks. Those responsible for the attacks should be punished. A potential hazard in seeking justice for our nation is the loss of constitutional safeguards afforded to citizens of the United States. The cornerstone upon which America was built, the United States Constitution, must not be jeopardized. America is premised on the concept of equal protection under the Constitution. Under the Constitution, United States citizens are guaranteed a right to due process. Fundamental due 249 Id. 250 Id. 251 Id. 252 Id. 253 Id. 254 Id. 255 Id. 256 Id. 30